March 10, 2010

This Detroit News piece, which is headlined "Angry Conyers vows to appeal 37-month prison sentence," suggests a high-profile federal sentencing today a political bribery case includes some interesting in-court action. Here are the highlights:

Former Detroit City Councilwoman Monica Conyers was sentenced to 37 months in prison today, but not before controversy and confusion erupted when she announced she wanted to withdraw her guilty plea to bribery.

In a loud and lengthy tirade that targeted federal prosecutors and the news media, Conyers said the court was trying to make an example of her and sentence her for crimes she did not commit. "I'm not going to be made the scapegoat for other people," Conyers told U.S. District Judge Avern Cohn. "I'm sorry that the newspapers have put pressure on you to make an example of me."

"I'm just not going to jail for something I didn't do."

Conyers' shock announcement -- "I want to withdraw my guilty plea" -- created uncertainty whether her sentencing would go ahead as a courtroom packed with media, relatives, supporters and others waited, as did a large crowd in the corridor that had been turned away from the courtroom.

But Cohn, who read aloud a transcript from Conyers' plea hearing in June, said he believed her plea was made knowingly and he would not allow her to withdraw it at what Assistant U.S. Attorney Mark Chutkow called "the 11th hour."

An angry Conyers left the courtroom vowing to appeal. "I'm walking out the front door and I'm appealing this case because he didn't have no right to do that," Conyers said.

But it's not clear whether she can. Her plea agreement said she waived her appeal rights provided Cohn did not sentence her to more than five years in prison, which is the maximum sentence for bribery conspiracy.

Cohn said she does not have to report to prison before July 1. After her prison term, she is to serve two years of supervised release, he said.

Conyers' Detroit attorney, Steve Fishman, asked to withdraw from the case immediately after the sentencing hearing, saying Conyers may have appeal rights and he could be a witness at any appeal. "This case is over for me," Fishman said....

Part of the controversy over the attempted plea withdrawal stemmed from Cohn's comments that he would consider other "relevant conduct" such as alleged shakedowns of a strip club, a technology company and a real estate developer with matters before the City Council or the General Retirement System, where Conyers sat as a trustee.

Those alleged acts involved more than $60,000 in illegal payments and increased Conyers' sentencing guidelines -- which are advisory only -- from 30-37 months to 46-57 months, Cohn said. Those allegations were detailed at the recent corruption trial of political consultant Sam Riddle, a former top aide to Conyers accused of working with her to shake down businesses. Riddle's trial ended in a mistrial in February.

Conyers protested vehemently, saying she denied all the allegations, and Cohn relented, saying he would not consider the other conduct and would leave Conyers' sentencing guidelines at 30-37 months.

But that did not dissuade Conyers from wanting to withdraw her guilty plea. "Everything Sam has done he has done on his own," she said....

It was disclosed for the first time today that Conyers has attempted to cooperate with government prosecutors. According to Cohn, prosecutors said they are still checking out information she gave them but so far do not feel it is valuable enough to warrant a recommendation for a reduced sentence.

"If I have to go the jail for what I've done, I'd love that," she told Cohn. "But I'll talk to my family and I don't want to go to jail for things I didn't do."

Conyers told the judge he had received a report from a doctor the judge sent her to, which revealed she was vulnerable to badgering.

"You had me go to see a doctor," Conyers told the judge. "She talked about why I pleaded guilty ... I think that is the basis for withdrawing my plea."

These developments are truly fascinating, and the array of potential interesting appellate issues raised by just the facts in this news report is making head swim. That said, because the Sixth Circuit has often seemed willing and eager to enforce appeal waivers, I fear Conyers may have an uphill battle trying to get even a day in appeals court.

I hope Conyers can/will bring on a top-flight appellate team if she really wants to try to undo her (Blakely-esque?) sentencing fate. Depending on the exact terms of the plea agreement and the peculiar happenings in the district court, some super lawyers might be able to at least crack open the appellate courtroom door for Conyers in the Sixth Circuit. And, whatever the specifics and the legal issues pursued (or not pursued) by Conyers, this high-profile case is worthy of continued attention.

Comments

Well, the IRS and the Michigan Department of Revenue should look into whether she filed false returns. And she should have to pay taxes on the $69,500. Did she?

Posted by: federalist | Mar 10, 2010 7:32:15 PM

We know what it's come to when the wife of the Chairman of the House Judiciary Committee says that she gets to appeal even though -- with the assistance of one of the top criminal lawyers in the city (who appropriately withdrew in light of his client's double-cross) -- she had EXPRESSLY WAIVED her right to appeal.

I was the fellow who invented appeal waivers and argued their first successful defense 20 years ago yesterday, United States v. Wiggins, 905 F.2d 51 (4th Cir. 1990). Over the last two decades, they have been endorsed by, I believe, every circuit. The agreement among the circuits as to their validity is so uniform that the Supreme Court has never taken cert on the question.

So congratulations to me (sorry for the self-approbation, but some things are irresitable, and this Conyers story was one of them)! Congratulations too to Mr. Fishman for his honorable decision to take off after his arrogant and mendacious client spun him (and the court).

P.S. The reason I invented the waiver was to prevent the defense bar from appealing the then-new Sentencing Guidelines into oblivion. There wasn't much I could do when the Supreme Court sent them into semi-oblivion in Booker 15 years later, but by then I had given them enough time to take root, which, I am happy to say, they have done notwithstanding the Booker revolution.

Posted by: Bill Otis | Mar 10, 2010 10:03:10 PM

"I was the fellow who invented appeal waivers and argued their first successful defense 20 years ago yesterday, United States v. Wiggins, 905 F.2d 51 (4th Cir. 1990)."

I didn't know that, Bill. That's pretty cool.

Posted by: JC | Mar 10, 2010 10:52:12 PM

This is delicious. Both sides are hateful, America haters. To see this spectacle is great. The only missing element? The mob supporting the Councilwoman loses it, and brings street justice to the cult criminals on the bench and in the Mafia that is the federal prosecution. Although a devout atheist, I ask those who believe in the power of prayer to pray for that perfect end.

I have noticed that the appeal waiver decreases the rent seeking content of the case. And the rarity of such an innovation proves the greater point that Scalia led the rent seeking attack on the guidelines.

Thanks. To be honest, the other reason I invented it was that I was head of appeals for the USAO, and I knew that, if I had to deal with the tsunami of new sentencing appeals about to hit, I could just set up a cot in the office, 'cause I was never gonna see my house again.

It was then that I discovered the true meaning of, "Necessity is the mother of invention."

Posted by: Bill Otis | Mar 11, 2010 2:31:11 AM

Well, I'm not too familiar with 6th Circuit law, but, presumably, she will at least get to appeal the validity of the waiver. If the waiver is valid, it will bar whatever claims are explicitly covered by the waiver. If the waiver is invalid, she obviously can appeal anything she would normally be able to appeal without a waiver. Another factor is whether the govt will seek to enforce the waiver, although it is almost certain that it will do so.

Posted by: HM | Mar 11, 2010 11:06:56 AM

Bill-- Well right, they're presumptively valid, but the appeal waiver wouldn't bar an appeal of whether her guilty plea was knowing, intelligent, and voluntary, because the waiver is part of the plea, no?

Posted by: Jay | Mar 11, 2010 11:31:36 AM

HM and Jay --

A person can always challenge whether his (or her) waiver was knowing and intelligent. That was true long before appeal waivers. It was and is true of trial waivers, otherwise known as plea agreements.

Knowing that a "knowing and voluntary" avenue of attack could be in the offing, we made sure the record was built at the Rule 11 proceeding. The judge would ask the defendant if she was on any drug or intoxicant, or had any medical, mental or emotional condition, that affected her understanding of the waiver. Likewise: if she had discussed it thoroughly with her lawyer, understood that she would not be able to attack her sentence no matter what it turned out to be, understood that any estimate of her sentence she had recieved from her lawyer, the probation office or the prosecutor was a best a prediction and not a promise, and that the court was not bound by it, and on and on. The judge would then ask THE LAWYER whether he was aware of any problem that would call into question his client's full understanding of the waiver or her ability to enter into it, whether he had explained it all to her, whether it was his judgment she understood it, and more.

After years of having seen slippery defendants try to wriggle out of their agreements, I made sure all the bases were covered. The great majority of defense counsel were men of their word. If they signed off on it and -- as in this case -- the defendant wanted to renege, they would ask to be removed (as Mr. Fishman did).

If there were a post-plea challenge anyway, essentially all we would need to do was attach a copy of the plea agreement and a transcript of the Rule 11 hearing, and that would be it.

Posted by: Bill Otis | Mar 11, 2010 7:45:22 PM

So Bill’s appeals-waiver helped nurture the then-fledgling sentencing guidelines – THE power tool prosecutors have long relied upon to compel (coerce?) plea agreements -- and his waiver has long since been ensconced in plea-agreement boilerplate.

And the inspirational mother of Bill’s invention was at least in part the desire to keep his appeals workload manageable.

Wow.

Must be wonderful to be a prosecutor in an era when standing up for fair treatment for the accused is politically perilous.

Must be great to be a prosecutor at a time when elected officials dare not give you whatever you ask them for.

Never mind that by the time most citizens sign plea agreements they are emotionally and financially drained after months or years of hounding by arrogant, breathtakingly powerful agents and prosecutors.

Never mind that the innocent and wrongly accused struggle even more intensely as they weigh confessing falsely against the likely prospect of draconian prison sentences typically imposed on the foolhardy few who exercise their right to trial.

Never mind that sometimes, in this frantic fearsome crucible, some of the seemingly less compelling time bombs the government plants in its plea-agreements (like Bill’s appeals waiver) can easily slip past the accused and their attorneys as they focus on seemingly bigger issues.

Someday, if America comes to its senses and moves to create a justice system worthy of all its uplifting, best-in-the-world slogans we like to toss around, we’ll look back on the sentencing guidelines and Bill’s appeals waiver and laugh.

Posted by: John K | Mar 11, 2010 8:09:12 PM

John K --

You accuse me of seeking to advance, and advancing, the interests of my client.

Guilty as charged, your Honor! I never understood why it was thought that defense counsel should aggressively advance the interests of their clients but prosecutors should snooze their way through the day.

BTW, never, not one time, did I force or even encourage a defendant to enter a plea bargain. I always disliked bargaining, because I thought (and think) trials are a better engine of truth. In addition, trials are the method of resolving felony charges set forth in the Constitution, and I tend to be a literalist in these things. The Supreme Court approved plea bargaining in Santobello, and it's a practical necessity, but I never liked it and still don't.

Posted by: Bill Otis | Mar 11, 2010 10:36:26 PM

hey bill if the govt LEGALLY REQUIRES defendanct to stand by their plea agreement! how about the govt!? are they also LEGALLY REQUIRED to as well?

if so gues that means we have about 400,000 thousand people on the megan's law registry ILEGALLY since their pleas took place YEARS before it even existed so kind of h ard to be IN THE PLEA!

Posted by: rodsmith | Mar 12, 2010 2:56:57 AM

John K, Well put... Federal prosecutors can pretend that they're only doing their job to advance their "client's" position, but all plea agreements are unconscionable contracts...
Written by the govt and based upon their take it of leave it bargaining power...
One thing I fail to hear prosecutors ever say is that they are following their duty to uphold the constitution. There are a few (very few) cases that state that a prosecutor has a duty to see that justice is achieved... But when injustice has been committed against an accused or a defendant, I've never seen a single federal prosecutor stand up and say, "oh we need to correct this".

I do agree with Bill Otis that trials are better. I believe that crime would be significantly reduced if all cases went to trial and public sentencing. Plea agreements sweep everything under the carpet and hide the consequences that are necessary to curb unlawful conduct. (The UNICOR/DOJ machine doesn't want a reduction in crime because that would be a reduction in profit/federal spending on the prison for profit system.)

Appellate waivers and Rule 11(c)(1)(B) plea agreements should be completely illegal. Then the courts would have to stick with the bargain the defendant agreed to or take the case to trial. This is a solution that is long overdue... (Also long overdue is appellate oversight of the Court of Appeals over the District Courts and the Supreme Court over the Court of Appeals. If the judges were punished for unjustified departures of stare decisis, then we'd see fewer appeals in the long run and more justice for defendants and civil litigants.) ...zig (jailhouse lawyer)

Posted by: zig | Oct 6, 2010 4:05:04 PM

One thing that does seem missing from this blog is whether the 30-37 month guidelines represented the conduct of what she thought she was pleading to. If so, I don't think she should be allowed to withdraw her plea. I can appreciate her distress of receiving an upward departure, but if you get the bargain you agreed to (barring any new discoveries that tend to controvert that the plea was knowing, intelligent, and voluntary) then you have nothing to complain about. ...zig

Posted by: zig | Oct 6, 2010 4:24:25 PM

John K, Well put... Federal prosecutors can pretend that they're only
doing their job to advance their "client's" position, but all plea
agreements are unconscionable contracts...
Written by the govt and based upon their take it of leave it bargaining
power...
One thing I fail to hear prosecutors ever say is that they are following
their duty to uphold the constitution. There are a few (very few) cases
that state that a prosecutor has a duty to see that justice is
achieved... But when injustice has been committed against an accused or
a defendant, I've never seen a single federal prosecutor stand up and
say, "oh we need to correct this".

I do agree with Bill Otis that trials are better. I believe that crime
would be significantly reduced if all cases went to trial and public
sentencing. Plea agreements sweep everything under the carpet and hide
the consequences that are necessary to curb unlawful conduct. (The
UNICOR/DOJ machine doesn't want a reduction in crime because that would
be a reduction in profit/federal spending on the prison for profit system.)

Appellate waivers and Rule 11(c)(1)(B) plea agreements should be
completely illegal. Then the courts would have to stick with the
bargain the defendant agreed to or take the case to trial. This is a
solution that is long overdue... (Also long overdue is appellate
oversight of the Court of Appeals over the District Courts and the
Supreme Court over the Court of Appeals. If the judges were punished
for unjustified departures of stare decisis, then we'd see fewer appeals
in the long run and more justice for defendants and civil litigants.)
...zig (jailhouse lawyer)

Posted by: zig | Oct 6, 2010 4:25:35 PM

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